Le juge du référé précontractuel est compétent pour contrôler les motifs de rejet d'une candidature. Le motif tiré de l'absence de références professionnelles relatives à l'exécution de marchés de même nature ne peut suffire, à lui seul, à justifier le re

The pre-contractual judge has the power to review the reasons for rejecting an application. The reason given for the absence of professional references relating to the performance of contracts of the same nature can not, on its own, suffice to justify the

by gmorales on September 1, 2015 | Category: Pre-contractual & Contractual referral
Le juge du référé précontractuel est compétent pour contrôler les motifs de rejet d'une candidature. Le motif tiré de l'absence de références professionnelles relatives à l'exécution de marchés de même nature ne peut suffire, à lui seul, à justifier le re Le juge du référé précontractuel est compétent pour contrôler les motifs de rejet d'une candidature. Le motif tiré de l'absence de références professionnelles relatives à l'exécution de marchés de même nature ne peut suffire, à lui seul, à justifier le re

Le juge du référé précontractuel est compétent pour contrôler les motifs de rejet d'une candidature. Le motif tiré de l'absence de références professionnelles relatives à l'exécution de marchés de même nature ne peut suffire, à lui seul, à justifier le re

CE June 17, 2015, Municipality of Montpelier, n ° 388596
The pre-contractual judge has the power to review the reasons for rejecting an application. The reason given for the absence of professional references relating to the performance of contracts of the same nature can not, on its own, suffice to justify the rejection of the application.

Rule n ° 1:

In accordance with Article 52 of the Code des Marches Publics, in order to assess whether an application is admissible, the contracting authority can not confine itself to stating that the candidate does not produce identical references to the subject of the contract. It follows that a letter which merely motivates the rejection of a candidate on that ground alone is unlawful and that in that case it is for the pre-contractual judge to annul the rejection and order the resumption of the award procedure at the analysis stage of applications.

Rule n ° 2: 

The contracting authority is required to examine the financial, technical and professional capacities of the candidates. In concrete terms, this examination differs from the verification of the material production of the application documents. it implies a genuine intrinsic analysis of the documents produced in support of the application file. In practice, however, many contracting authorities do not do this work. Unsuccessful candidates therefore have every interest in requesting the minutes of analysis of applications to verify this point.

Rule n ° 3:

The contracting authority may argue before the court that, notwithstanding the irregularity of the ground for rejection mentioned in the letter, it has made an assessment of the applicant's financial, technical and professional capacities, which it has been able to do without committing any manifest error of assessment, considered insufficient. In such a case, the pre-contractual judge has jurisdiction to substitute that ground for the irregular ground mentioned in the rejection letter and to confirm the rejection of the application without having to annul the procedure or order its resumption at the analysis stage of the applications.

Board of state
No. 388596
ECLI: FR: CESSR: 2015: 388596.20150617
Mentioned in the tables of Lebon collection
7th / 2nd SSR

Mrs Laurence Marion, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP LYON-CAEN, THIRIEZ; SCP NICOLAY, LANOUVELLE, HANNOTIN, lawyer (s)

read on wednesday 17 june 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The Philip Brothers company has asked the judge of the administrative court of Montpellier the cancellation of the procedure of awarding the public contract to orders of maintenance of fountains of the city organized by the municipality of Montpellier, which it considers to have been irregularly evicted.
By order no. 1500620-4 of 24 February 2015, the judge of the Montpellier Administrative Court, ruling under Article L. 551-1 of the Code of Administrative Justice, quashed this procedure.

By a summary appeal, an additional memorial and a reply filed on 10 and 17 March and 13 May 2015 to the litigation secretariat of the Council of State, the municipality of Montpellier asks the State Council:

1 °) to cancel this order;
2 °) ruling in summary, to reject the application of the company Philip Frères;
3 °) to charge the company Philip Frères the payment of the sum of 6,000 euros under Article L. 761-1 code administrative justice.

Considering the other parts of the file;

Viewed:

- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mrs Laurence Marion, Master of Petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Lyon-Caen, Thiriez, lawyer of the commune of Montpellier, and to the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the Philip Brothers company;

Considering the note under deliberation, recorded on May 27th, 2015, presented for the company Philip Frères;

1. Considering that according to Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, can be seized in case of breach of the obligations of publicity and competitive bidding to which the contracting authorities are subject to administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right of exploitation, or the delegation of a public service (...) ";

2. Considering that it appears from the documents in the file submitted to the judge of the administrative court of Montpellier that the municipality of Montpellier has initiated a procedure for awarding a public contract to purchase orders for the maintenance of fountains in the city ; that the municipality appeals in cassation against the order of 24 February 2015 by which the judge of the interim, seized on the basis of the article L. 551-1 of the code of administrative justice by the company Philip Frères, whose candidature had was found to be irregular, canceled the procedure for awarding this contract;

3. Considering that under Article 52 of the Code des Marches Publics "(...) The absence of references relating to the performance of contracts of the same nature can not justify the elimination of a candidate and does not dispense the contracting authority from examining the candidates' professional, technical and financial capacities. " whereas it follows from these provisions that the contracting authority can not confine itself to ascertaining, in order to assess whether an application is admissible, that the candidate does not produce references relating to similar markets; that, consequently, the judge of interim relief did not make error of law by judging that the absence of production of references corresponding to services similar to those to the subject, of the commune opposed to the company Philip Frères in the letter of January 30, 2015 informing the latter of the rejection of his candidacy, could not legally justify this rejection; that it however made an error of law by dismissing as inoperative the argumentation developed before him by the commune as to the insufficiency of the capacities of the company with regard to the object of the market, without seeking if the commune had delivered to the appreciation of these capabilities before rejecting the application of the company; whereas the order under appeal must therefore be annulled without it being necessary to examine the other grounds of appeal;

4. Considering that it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the procedure of interim relief initiated by the company Philip Frères;

5. Considering that it results from the instruction that by a letter of January 30, 2015, the municipality of Montpellier communicated to the company Philip Brothers, as reasons for rejection of his candidacy, on the one hand that had not been provided the "electrical certificates UTE 18-510" and, secondly, that the references submitted in support of his application file did not concern similar markets;

6. Whereas, as stated above, the reason that the applicant company did not produce references in similar markets can not, on its own, justify the rejection of the application; Philip Frères, the contracting authority being required to examine the professional, technical and financial capabilities of a candidate under the aforementioned provisions of Article 52 of the Code des Marches Publics; that, however, the municipality of Montpellier argues that, notwithstanding the motivation contained in the letter of rejection addressed to the company, it has actually engaged in an assessment of the professional and technical capabilities of the company and that it judged them insufficient; that it follows from the investigation that the tender commission made this assessment before the rejection of the candidacy of the company Philip Frères; that by considering, with regard to the social purpose of the company Philip Frères, his human and material means, proven qualifications and his previous experience, that this candidacy, despite real skills in the maintenance of the courses of natural waters, did not demonstrate competences of control of the water of the basins and the fountains object of the market, the municipality did not taint with manifest error the appreciation to which it was thus delivered; that this reason justifies the rejection of the candidacy of the company Philip Frères;

7. Considering that it follows from the foregoing that the candidacy of Philip Brothers was inadmissible; that, consequently, this company can not usefully invoke the illegality of the second ground of rejection opposed to its candidacy; that his request must consequently be rejected, including his conclusions under Article L. 761-1 code administrative justice; whereas, on the other hand, in the circumstances of this case, it is appropriate to make the payment to the commune of Montpellier of 4,500 euros in respect of the proceedings before the Montpellier Administrative Court and the state Council ;

DECIDE:
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Article 1: The order of 24 February 2015 of the judge of the summary of the administrative court of Montpellier is canceled.
Article 2: The application submitted by the company Philip Frères before the Administrative Court of Montpellier and its conclusions presented to the Council of State under Article L. 761-1 code administrative justice are rejected.
Article 3: The company Philip Brothers will pay a sum of 4,500 euros to the municipality of Montpellier under Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the municipality of Montpellier and Philip Brothers.

Summary : 

Judge of the pre-contractual summary finding that the reason given by the contracting authority, a municipality, in his letter informing the candidate that he does not retain his candidacy is illegal. The judge may, with an argument to this effect, point out that, notwithstanding the statement of reasons in the letter of rejection, the tender commission did in fact assess the professional and technical capacities of the company and that it has them, without manifest error of appreciation, considered insufficient, to deduce that this ground, which may be substituted for that of the letter, justifies the rejection of the application.

Judge of the pre-contractual summary finding that the reason given by the contracting authority, a municipality, in his letter informing the candidate that he does not retain his candidacy is illegal. The judge may, with an argument to this effect, point out that, notwithstanding the statement of reasons in the letter of rejection, the tender commission did in fact assess the professional and technical capacities of the company and that it has them, without manifest error of appreciation, considered insufficient, to deduce that this ground, which may be substituted for that of the letter, justifies the rejection of the application.